A federal appeals court signaled Friday that it is unlikely to allow President Barack Obama’s request to go ahead with a new round of relief for illegal immigrants, making it likely that the White House will have to take its legal case to the Supreme Court within days.

The oral arguments before the 5th Circuit U.S. Court of Appeals in New Orleans were being closely watched by both sides in the heated immigration debate as a sign of whether the administration will be able to move forward with its plan to grant quasi-legal status and work permits to about 4 million illegal immigrants. Notably, one Republican-appointed judge used the president’s own comments to put the Justice Department on the defensive.

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By the time the court session wrapped up, it appeared likely the appeals judges will rule, 2-1, against the administration’s request for a stay of a district court injunction, which would most likely leave the Supreme Court to decide whether the program can move ahead while lawsuits play out in the states. If the administration can’t get its new moves underway sometime this year it may have difficulty getting them done before Obama leaves office.

Obama’s plan — a legacy agenda item for him — would expand of a program offering quasi-legal status to illegal immigrants who came to the U.S. as children and include a new program that offers the same benefits to illegal immigrant parents of U.S. citizens.

The Obama administration contends that the programs announced last November — officially known as Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) — are lawful exercises of prosecutorial discretion. Texas and other states that have filed lawsuits challenging the moves. arguing that only Congress can authorize these kinds of sweeping actions.

Implementation of the program was stalled when U.S. District Court Judge Andrew Hanen issued an order blocking the actions. A Justice Department appeal brought the matter before the 5th Circuit.

The two-hour hearing took on some of the same partisan tension that has surrounded the issue in the political arena.

Judge Jennifer Elrod. a Republican appointee, suggested that Obama’s own statements about the program undermined the federal government’s claims that immigration officials retain case-by-case discretion. She referenced a televised town hall meeting in Miami in February when Obama said that there would be consequences for government employees who ignored his directives to grant deferred action to those who are eligible.

“When he says if you file this you will get relief, when he gives affirmative statements that you are entitled to the relief … are those just general, what we would say in other contexts, puffery?” Elrod asked, adding, “I mean no disrespect to the president by saying that.”

Justice Department lawyer Ben Mizer said Obama’s comments “have to be taken in context” and insisted they were not at odds with the federal government’s arguments that immigration officers have the right to deny deferred action status in any case.

“All the president said in that statement taken in context is … that subordinates are bound by what their superiors tell them. But the president in no way countermanded the guidance that is actually being challenged in this case,” Mizer said.

However, Judge Stephen Higginson, an Obama appointee, cautioned that the courts could create chaos in the government if they conclude that any time agency officials closely follow an internal directive it has to be made into a formal regulation that’s subject to notice-and-public-comment.

“If what we’re saying here is ‘we’ve looked at the data and the government officers are largely adhering to their own criteria, therefore the guidelines are invalid, really, it’s a secret rule,’ that’s a very perverse legal incentive,” Higginson warned. “That’s a dangerous rule for us to try to write.”

Most of the support for the the administration’s stance came from Higginson, an Obama appointee, who repeatedly questioned Hanen’s rationale.

Hanen’s ruling turned not on Obama’s statutory or constitutional power to make his immigration moves, but on the administration’s failure to put them through a formal notice-and-comment period required when the government sets rules that impact individuals or businesses.

Higginson suggested that Hanen wrongly concluded that evidence of how the administration carried out its initial relief for so-called Dreamers offered in 2012 dictated the manner in which the new round of actions would be administered.

“The pool is different and the program is different,” Higginson said, adding that the differences “call, in my mind, in doubt the extrapolation going on.”

But on about a half dozen occasions Higginson also suggested that one reason to view the program as a form of prosecutorial discretion was because it enticed illegal immigrants to come out of the shadows and left open the possibility they could be tracked down and deported later.

“The first step toward removing them is getting them into the database,” Higginson said. “It is scary for them. It is precarious to identify … They’re even telling us where they are. We’re finding the fugitives.”

The argument is an awkward one for the administration. At least until Hanen’s injunction, administration officials and their allies had encouraged illegal immigrants eligible for the programs to come forward. However, the judge noted that there’s no legal reason why a future administration could not cancel the programs or use the data from them to pursue deportations new enforcement priorities.

Higginson also raised another point that may not sit well with some immigrant-rights activists. He noted that the record number of deportations the Department of Homeland Security has carried out in recent years undermined contentions that the administration is shirking its duty to get illegal immigrants out of the country.

“Why wouldn’t that same fact this agency is removing more [people] than ever before be relevant to the district court’s conclusion that the agency was acting pretextually?” the judge asked.

Judge Jerry Smith, who has drawn headlines for clashing with Justice Department lawyers in other cases, did no bombthrowing Friday. In fact, he took a back seat at the argument, leaving Elrod and Higginson to do most of the verbal sparring with lawyers for both sides.

In his few comments, Smith did seem inclined against the administration, however. He pointed repeatedly to a 2007 Supreme Court ruling in which the justices held, 5-4, that states had standing to sue the EPA over its decision not to regulate greenhouse gases. That decision “may be key” to the outcome of the immigration litigation, the Reagan appointee said.

The states challenging Obama’s immigration actions say they have standing because they will incur costs from the millions of deferred action grants the administration is planning, including the costs of issuing drivers licenses to the immigrants accorded “legal presence” under the new policies.

However, Mizer said the states’ claims would mean they could sue over virtually any immigration policy change or even over the handling of specific cases.

“That can’t possibly be right,” the Justice Department lawyer said. “If Texas is right, then they could challenge an individual decision to grant asylum status to an individual who resides in Texas if that individual goes and seeks a drivers’ license.”

Texas Solicitor General Scott Keller insisted there was no way states would litigate such disputes.

“This parade of horribles is not going to happen,” he declared.

Keller focused his arguments largely on the fact that this appeals court panel is supposed to focus on whether to stay Hanen’s order. The administration’s appeal of the judge’s order is to be decided later, likely by another 5th Circuit panel.

“DAPA would be one of the largest changes in immigration policy in our nation’s history,” Keller said. “Any injury that the executive could show would not outweigh the irreversible harm of changing the status quo by allowing DAPA to go into effect.”

Elrod, a George W. Bush appointee, seemed persuaded that maintaining the status quo meant keeping the executive actions on hold while the litigation plays out.

“We’re big about the status quo,” Elrod said. “It appears the Supreme Court may be big about [preserving] the status quo in the middle of cases.”

The judge also asked how work permits and tax benefits could be retrieved if the programs go forward and the courts ultimately rule them illegal. Immigrants approved for the programs “could end up with a big check and you’d need to knock on their door and ask for it back,” she said.

Mizer called that prospect “attenuated” and said it was doubtful that individuals could collect tax credits before the courts have ruled on the legality of Hanen’s injunction.” There are a lot of hoops that an individual had to jump through,” he said.

The arguments at the 5th Circuit’s headquarters drew a crowd of demonstrators who back Obama’s executive actions. At times, their chants and shouts could be heard in the courtroom where the arguments took place, a recording of the session shows.

Smith, the Houston-based judge who presided over the session, chalked up the noise to the Big Easy’s reputation for street parties.

“It’s rowdy folks outside,” he said. “It’s cruel and unusual punishment to have to argue on Friday afternoon in New Orleans.”